A-737-82
Attorney General of Canada (Applicant)
v.
Frank Von Findenigg (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Verchere D.J.—Vancouver, February 14; Ottawa,
February 25, 1983.
Unemployment insurance — Jurisdiction of Umpire —
Application to review and set aside Umpire's decision reversing
Board of Referees and rescinding Commission's rulings —
Commission first refusing application to backdate benefits
claim for failure to fulfill qualifying conditions — Respondent
appealing to Board of Referees — Commission issuing second
refusal on ground respondent failed to comply with ss. 53, 54
and 55 of Unemployment Insurance Act — Common ground
that Board erred in law in dismissing appeal — Claim for
benefits a renewal and subject to conditions in s. 55 including
waiver where circumstances so warrant — Umpire's decision
set aside — Matter referred back to Umpire to be referred
back to Commission for consideration of application to back
date claim — Matter having been appealed, second refusal a
nullity — Commission not to exercise s. 102 authority to vary
or rescind decision after appeal procedure invoked — Power of
waiver in s. 55(10) vested only in Commission — Commission
not having considered whether circumstances warranted waiver
— Implied power of Board to refer matter back to Commis
sion to exercise statutory duty in order to finally resolve
situation — Umpire acting properly as empowered to give
decision Board should have given and to set aside Commis
sion's refusal to backdate claim — Umpire erred in not
referring matter back to Commission for consideration of
waiver of s. 55 requirements — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48, ss. 20(2) (rep. and sub. S.C.
1976-77, c. 54, s. 33), (4), 41(1), 43(1) (rep. and sub. S.C.
1974-75-76, c. 80, s. 16), 55(10) (rep. and sub. S.C. 1974-75-
76, c. 80, s. 19), 94, 96 (rep. and sub. S.C. 1976-77, c. 54, s.
56), 102 — Unemployment Insurance Regulations, C.R.C., c.
1576, s. 39.
Application to review and set aside the Umpire's decision
which reversed the decision of the Board of Referees and
rescinded the rulings of the Unemployment Insurance Commis
sion. The respondent applied to the Commission to backdate his
claim for benefits. His application was refused because he
failed to prove that he fulfilled the qualifying conditions for
entitlement to benefit. The Board of Referees dismissed the
respondent's appeal because good cause for delay had not been
shown. No statutory basis was cited, but the decision was
apparently based on subsection 20(4) of the Act and paragraph
39(b) of the Unemployment Insurance Regulations. However,
these provisions only apply to an initial claim for benefit and
the respondent's claim was a renewal. Before the matter was
dealt with by the Board, but after the appeal to the Board had
been asserted, the Commission issued a second refusal of the
application to backdate, this time correctly referring to it as a
renewal claim. Subsection 55(1) of the Act disentitles renewal
claimants to benefits unless the Commission exercised its dis
cretion pursuant to subsection 55(10) to waive the requirements
of section 55. The Umpire set aside the Board's decision to
reject the application to backdate and rescinded the rulings of
the Commission. Section 96 provides that an Umpire may
dismiss an appeal, give the decision that a board of referees
should have given, refer the matter back to the board for
rehearing or confirm, rescind or vary the decision of the board
in whole or in part. The issue is whether the Umpire's disposi
tion of the appeal was correct.
Held (Heald J. dissenting in part), the Umpire's decision
should be set aside and the matter referred back to him to be
referred back to the Commission for consideration of the
application to backdate the claim.
Per Thurlow C.J. (Verchere D.J. concurring): The Commis
sion's second refusal notice was a nullity because the matter
had been appealed and was out of its hands at the time it was
issued. Under section 102 the Commission may rescind or alter
its decision in certain circumstances. But once the appeal
procedure has been invoked, it is too late for the Commission to
exercise its authority under that section. Parliament cannot
have intended that the Commission would be able to interfere
with the respondent's exercise of his statutory rights at any
stage of the appeal process. Since the Commission never con
sidered whether the circumstances warranted waiver of the
section 55 requirements, the Board should have allowed the
appeal and referred the matter back to the Commission to
perform its statutory function. The power of waiver is vested
only in the Commission and when it is invoked by a claimant, it
must be exercised by the Commission. It must be exercised
fairly. The Act does not define the powers of the Board. By
providing for appeals to a board of referees Parliament must
have intended to implicitly have authorized the Board to give
any decision that is necessary to ensure that the result is in
accordance with the law. Where the correct application of the
law to the situation is such that the matter cannot be finally
resolved until the Commission has properly exercised a power
reserved by the statute only for its determination, there is an
implication that the Board can and should refer the matter
back to the Commission for the exercise of that power. The
Umpire properly set aside the decisions of the Board and the
Commission, but should have referred the matter back to the
Commission for exercise of its statutory duty.
Per Heald J. dissenting in part: The Umpire was correct in
reversing the decision of the Board dealing with the Commis
sion's first refusal to backdate. Once this decision is set aside,
the Commission is in the position of having before it the
application to backdate which it is required by law to consider
based on the criteria in section 55 including subsection (10). It
is unnecessary to refer the matter back to the Commission. The
Umpire erred, however, in rescinding "The rulings of the
Commission". The Commission's second refusal was not before
the Board because it was a nullity and therefore was not before
the Umpire. Also, the lack of detail concerning the powers of
the Board in the Act, particularly in section 94, contrasted to
the detailed provisions concerning the powers of the Umpire in
section 96, raises some question as to the power of the Board to
refer matters back to the Commission with directions to per
form its statutory function in relation to subsection 55(10).
COUNSEL:
P. Partridge for applicant.
A. H. MacLean for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Vancouver Community Legal Assistance
Society, Vancouver, for respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application to review
and set aside the decision of an Umpire under the
Unemployment Insurance Act, 1971 [S.C. 1970-
71-72, c. 48], which reversed the decision of the
Board of Referees and rescinded the rulings of the
Commission with respect to the respondent's claim
for unemployment insurance benefit.
On the respondent's appeal under section 94 of
the Unemployment Insurance Act, 1971, the Board
of Referees had two matters for its determination.
The first was the three weeks' disqualification
imposed by the Commission on the respondent
under subsections 41(1) and 43 (1) [rep. and sub.
S.C. 1974-75-76, c. 80, s. 16] of the Act on the
ground that he had lost his, employment by reason
of his own misconduct. The Board allowed the
appeal and the Commission did not take the
matter further. That subject-matter thus disap
peared and is not involved in the subsequent pro
ceedings on appeal to the Umpire or on the
application to this Court.
The second matter which the Board of Referees
had before it was the Commission's refusal to
antedate or backdate the respondent's claim so
that he could receive benefits from May 25, 1981
when he lost his employment. His application for
benefit was not made until June 25, 1981.
In refusing the respondent's application to back
date his claim, the Commission had given as its
reason that the respondent was not entitled to have
his claim for benefit antedated to May 25, 1981 as
he had not proven that he fulfilled the qualifying
conditions for entitlement to benefit on that date.
Subsection 20(4) of the Act and Regulation 39(a)
[Unemployment Insurance Regulations, C.R.C., c.
1576] were cited in support.
Not a word was said of this in the observation of
the Commission to the Board of Referees or in the
Board's decision and it appears to have been com
pletely abandoned as a ground of refusal. In its
place the Commission urged that it was the
respondent's responsibility to file his claim and
that good cause for the delay had not been shown.
The Board adopted that position and dismissed
the respondent's appeal. No statutory basis was
cited but at the argument it appeared to be
common ground that the decision was based on
subsection 20(4) of the Act and Regulation 39(b).
It was also common ground that the reasoning is
not tenable since subsection 20(4) and Regulation
39(b) apply only to an initial claim for benefit and
the respondent's was not such a claim. It was a
renewal claim.
That left, however, the question, which the
Board did not address, probably because it was not
raised, whether the application to backdate the
claim was properly refused and that, as I see it,
was the subject-matter of the appeal to the
Umpire.
Before the matter had been dealt with by the
Board of Referees, but after the respondent's
appeal to the Board had been asserted, the Com
mission issued, on August 28, 1981, what purport
ed to be a second refusal of the application to
backdate the claim referring to it this time as a
renewal claim and giving as the reason for refusal:
You failed to make your renewal claim for benefit in the
prescribed manner in that you failed to make your renewal
application on 25 May, 1981 as required by Sections 53, 54,
and 55 of the Unemployment Insurance Act and Regulation
145.
As the respondent had had a benefit period
established for him in December, 1980, and in the
period from May 25, 1981 to June 25, 1981, had
not made a claim for benefit, subsection 55(1)
would apply to disentitle the respondent from
receiving benefit for that period. But the disentitle-
ment was subject to waiver by the Commission
under subsection 55(10) [rep. and sub. S.C. 1974-
75-76, c. 80, s. 19]. It provides:
55....
(10) The Commission may waive or vary the conditions and
requirements of any of the provisions of this section or the
regulations whenever in its opinion the circumstances warrant
such waiver or variation for the benefit of the claimant in a
particular case or class or group of cases.
As the Commission's refusal to backdate the
respondent's claim was under appeal when the
notice of August 28, 1981 was issued, the matter
was out of the Commission's hands and the notice
was therefore, in my opinion, a nullity. I take this
view notwithstanding section 102 of the Act. It
provides:
102. The Commission, a board of referees or the umpire may
in respect of any decision given in any particular claim for
benefit rescind or amend the decision on the presentation of
new facts or on being satisfied that the decision was given
without knowledge of, or was based on a mistake as to, some
material fact.
Under this section the Commission has author
ity to rescind or amend a decision it has made if
new facts have been presented or if the decision
was based on ignorance or mistake of a material
fact. Nothing in the present situation indicates
that any new fact had been presented or that the
Commission did not know of or based the refusal
that was under appeal on any mistake as to a
material fact. But apart from that once the appeal
procedure had been invoked it was, as it seems to
me, too late for the Commission to exercise its
authority under section 102. The section does not
expressly put any time limit on the exercise of the
power but it seems to me that any other interpreta
tion would enable the Commission at any stage,
whether the matter was before the Board or the
Umpire or before this Court for review under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], to intervene and interfere with
the exercise by the claimant of his statutory rights
as well as with the proper exercise by the Board,
the Umpire and the Court of their functions. It
would also lead to the conclusion that the Board of
Referees could similarly interfere with the pro
ceedings on an appeal to the Umpire and that the
Umpire could change his decision while it is the
subject of review in the Court. I do not think such
could have been Parliament's intention.
To return to the situation that was before the
Board of Referees in the present case, it is appar
ent from the reasons assigned by the Commission
in its refusal of August 17, 1981 and from its
observation to the Board of Referees that before
the respondent's application to antedate his claim
was refused the Commission had never given it
consideration under subsection 55(10) or formu
lated any opinion whether the circumstances of the
respondent's failure to make his claim warranted
waiver or variation under subsection 55(10) of the
requirements of subsections 55(1) to 55(9).
In this situation the judgment of the Board of
Referees, in my opinion, ought to have allowed the
respondent's appeal and set aside the refusal of his
application to backdate his claim. Further, as the
Board could not exercise the authority of the
Commission under subsection 55(10), it should
have referred the matter back to the Commission
to carry out its function under that subsection.
I pause to note at this point that in my opinion
in the situation that was before them the Board of
Referees had authority to refer back to the Com
mission the question whether the circumstances
warranted waiver under subsection 55(10) of the
statutory requirements which stood in the way of
the respondent's claim. The power to waive under
subsection 55(10) is vested only in the Commission
and when it is invoked by a claimant it must be
exercised by the Commission. It must be exercised
by that body having regard to the circumstances of
the particular case and it goes without saying that
it must be exercised fairly and not arbitrarily.
On an appeal from the Commission's decision
under subsection 55(10) to waive or not to waive
the Board of Referees has, as I read the legislation,
no authority to substitute its own view as to wheth
er any of the requirements of subsections 55(1) to
(9) should be waived. But in the course of hearing
an appeal it may become apparent that the case
calls for the exercise of the authority of the Com
mission to decide whether or not to waive and that
the Commission has erroneously refused the claim
ant's request without considering the matter either
at all or as it ought to have done under subsection
55(10).
In such a situation what course is open to the
Board? The Board is established under section 91
and it appears from the scheme of the statute that
it is intended to be a tribunal for the hearing of
appeals from decisions of the Commission on the
rights of claimants to the benefits they claim. But
the only provisions of the Act purporting to deal
with its jurisdiction and powers, apart from section
102, to which I have already adverted, is section
94. It provides:
94. (1) The claimant or an employer of the claimant may at
any time within thirty days from the day on which a decision of
the Commission is communicated to him, or within such fur
ther time as the Commission may in any particular case for
special reasons allow, appeal to the board of referees in the
manner prescribed.
(2) A decision of a board of referees shall be recorded in
writing and shall include a statement of the findings of the
board on questions of fact material to the decision.
Nowhere is there any provision defining what
powers are exercisable by the Board in disposing of
an appeal that has been asserted to it. In particular
there is nothing similar to section 96 [rep. and sub.
S.C. 1976-77, c. 54, s. 56] which outlines and
confers a variety of powers that are exercisable by
an Umpire on an appeal to him from the Board. I
do not think, however, that the absence of such a
provision can be taken as meaning that the Board
has no powers to exercise. Parliament, in providing
for appeals to such a Board, in my opinion, must
be taken to have intended to confer an effective
right of appeal and implicitly to have authorized
the Board to give any decision that in the circum
stances of the case before it is necessary to ensure
that the result is in accordance with the law.
Where that result follows from the facts before the
Board, the Board, in my opinion, can and must
give judgment accordingly. But where, as here, the
correct application of the law to the situation is
such that the matter cannot be finally resolved
until the Commission has properly exercised a
power reserved by the statute only for its determi
nation it seems to me to be necessarily implied that
the Board can and should refer the matter back to
the Commission for the exercise by it of that
power.
I come now to the situation on the appeal to the
Umpire. In the course of his reasons after describ
ing the confusion that resulted from changing
reasons and two notices of refusal, the learned
Umpire said:
It is obvious to me confusion has been created by the issue of
the two Notices of Refusal. The claimant, as a layman, could
not really know which one, or perhaps both, were going to be
dealt with by the Board of Referees. As one can see from them,
they are completely different in terms; completely different
issues, and evidence, are involved.
As I earlier pointed out, the first notice (the one which the
Board of Referees apparently directed their minds to) is in
itself confusing, in respect of the section of the Act and the
particular subparagraph of the Regulation it refers to.
I had first considered whether the proper thing to do would
be to refer this whole matter back to the same Board of
Referees, or perhaps to another Board, for re-hearing. I decided
against that. I decided in favour of allowing this appeal: of
setting aside the decision of the Board of Referees, and the
decision of the Commission, including the second Notice of
Refusal.
This whole matter has been outstanding for over a year. If a
re-hearing were directed, it could well be the matter could take
another year, or more, before its ultimate resolution.
That would, to my mind, be unfair to the claimant. There is
no point of principle involved in this case. My decision is
confined to the peculiar facts of this appeal.
As I see it, the present decision of the Board of Referees is
wrong in law. They did not address their minds to Regulation
39(a) which deals with questions of qualification. Not of delay
in making a claim. In addition, there were two contradictory
Notices of Refusal, outstanding in respect of the claimant's
claim and his appeal. That seems, to me, to have created an
error of law. The legal errors were not created by the Board of
Referees. They emerged from the confusion in respect of the
Notices of Refusal which I have already described.
The decision of the Board of Referees is reversed. The
rulings of the Commission are rescinded.
Under section 96 of the Act an Umpire
96.... may decide any question of law or fact that is
necessary for the disposition of any appeal taken pursuant to
section 95 and may dismiss the appeal, give the decision that
the board of referees should have given, refer the matter back
to the board of referees for rehearing or re-determination in
accordance with such directions as he considers appropriate or
confirm, rescind or vary the decision of the board of referees in
whole or in part.
In the view I take of the matter the decision of
the Board of Referees to dismiss the respondent's
appeal for the reason assigned by the Board was
wrong in law and was properly set aside by the
Umpire. As the Umpire was empowered to give
the decision that the Board of Referees should
have given he was also right in setting aside—(he
used the word "rescinded" which I think means
the same thing)—the refusal by the Commission
of the respondent's application to backdate his
claim. With respect, however, and despite the very
persuasive reasons of the learned Umpire for
declining to refer the matter back, I am of the
opinion that to leave the matter there does not
entitle the respondent to benefit for the period in
question or to waiver under subsection 55(10) of
the requirements of subsections 55(1) to (9). I am
of the opinion, therefore, that the Umpire should
have gone further, as I think the Board of Referees
ought to have done, and referred the matter back
to the Commission for performance of its statutory
function to consider the respondent's application to
backdate his claim under subsection 55(10). I
would, therefore, set aside his decision and refer
the matter back to him for disposal of the respond
ent's appeal on that basis.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting in part): This is a section
28 application seeking to review and set aside the
decision of an Umpire appointed pursuant to the
provisions of the Unemployment Insurance Act,
1971. There were originally two decisions by the
Unemployment Insurance Commission affecting
this applicant [i.e., Von Findenigg, sometimes
referred to in this judgment as "respondent" or
"claimant"]. The first decision, dated August 10,
1981, was one which disqualified the applicant
from receiving benefits for three weeks on the
basis that he had lost his employment by reason of
his own misconduct. The authority for this dis
qualification was said to be pursuant to the provi
sions of sections 41 and 43 of the Act. The second
decision, dated August 17, 1981 arose out of the
applicant's claim to antedate his claim for benefit
to May 25, 1981, due to the fact that the claim
was not made until June 25, 1981. This decision of
the Commission rejected the application to ante
date pursuant to the provisions of subsection 20(4)
of the Act and Regulation 39(a). On August 21,
1981, the applicant appealed both decisions to a
Board of Referees. On August 28, 1981, the Com
mission purported to issue a second notice of refus
al in respect of the applicant's request to antedate
his claim for benefits. The basis for this refusal
was entirely different from that given in the first
notice of refusal (the August 17, 1981 notice
referred to supra). The Board of Referees heard
the appeals from both decisions orally on Septem-
ber 22, 1981. The applicant's appeal was allowed
in respect of the section 41 disqualification for
misconduct but was dismissed in respect of the
claim for antedating. The applicant then appealed
the antedating matter to an Umpire. Thus the
decision of the Board of Referees in respect of the
section 41 disqualification was not in issue before
the Umpire, nor is it in issue before us and the
Referee's decision therein stands as a valid and
subsisting disposition of that issue in favour of this
applicant.
Counsel for both parties agreed that the provi
sions of subsection 20(4)' and Regulation 39 do
not apply to the facts in this case because the
benefit period as described in section 20 was estab
lished in the case of this applicant on December
15, 1980, when he had made a previous claim for
benefits to the Abbotsford, B.C. office. According
ly, subsection 20(4) has no application because
subject claim was not his "initial claim for bene
fit" within the benefit period established for him
' Said subsection 20(4) reads as follows:
20....
(4) When a claimant makes an initial claim for benefit on
a day later than the day he was first qualified to make the
claim and shows good cause for his delay, the claim may,
subject to prescribed conditions, be regarded as having been
made on a day earlier than the day on which it was actually
made.
when he made his claim on December 15, 1980. 2
It is also common ground that the proper statu
tory basis for refusing the applicant's claim for
antedating would be sections 53, 54 and 55 of the
Act, along with Regulation 145. These statutory
provisions formed the basis for the refusal notice
sent out by the Commission on August 28, 1981
and referred to supra. However, two difficulties
are raised by the two sets of reasons given by the
Commission for refusing the application to ante
date: firstly, when the second refusal notice was
issued the matter was already under appeal and
out of the Commission's hands, and, secondly, the
criteria upon which to base a decision whether or
not to waive under subsection 55(10) are quite
different from those applicable under subsection
20(4) and Regulation 39. Under the latter provi
sions, the claimant would have had to establish
that on May 25, 1981 he was qualified to receive
benefits and that from May 25, 1981 to June 25,
1981 he had good cause for his delay in making his
claim. On the other hand, under section 55 of the
Act, the criterion enabling the Commission to
antedate an application is set out in subsection
(10) of section 55. That subsection provides:
55....
(10) The Commission may waive or vary the conditions and
requirements of any of the provisions of this section or the
regulations whenever in its opinion the circumstances warrant
such waiver or variation for the benefit of the claimant in a
particular case or class or group of cases.
It will thus be seen that the Commission under
that subsection, when faced with an application to
antedate, is required to decide whether "the cir
cumstances warrant such waiver".
I am satisfied from this record that the Commis
sion, in dealing with this application to antedate,
made its decision to refuse the application on the
basis of subsection 20(4) of the Act and section 39
of the Regulations.
2 Pursuant to subsection 20(2) [rep. and sub. S.C. 1976-77, c.
54, s. 33], the length of the benefit period here was fifty-two
weeks dating from December 15, 1980.
The appeal to the Board of Referees proceeded
on that basis and was dealt with by the Board on
that basis. There was nothing on the record to
show that the August 28, 1981 notice was ever
sent to the applicant. The claimant's letter of
appeal to the Board of Referees is dated August
21, 1981 and refers only to the grounds given in
the August 17, 1981 notice. The Board dealt with
the matter on the basis of subsection 20(4) and
Regulation 39(a). Before the Umpire, it is also
clear that the legality of the refusal to antedate
was argued and dealt with on the basis of subsec
tion 20(4) and Regulation 39(a). The Umpire
refers to the notice of August 28, 1981 as follows:
This Notice of Refusal did not purport to cancel or replace the
earlier Notice of Refusal. It was a document out of the blue.
He then proceeded to set aside the decision of the
Board wherein it rejected the application to ante
date. I agree with that portion of the Umpire's
decision. However, I do not agree with the remain
der of his decision wherein he purported to rescind
"The rulings of the Commission". I think he was
there referring to the reasons given by the Com
mission for its decision of August 17, 1981 and its
so-called "decision" of August 28, 1981. In so far
as the reasons for the August 17, 1981 decision are
concerned, there is no need for an order rescinding
those reasons since the effect of dismissing this
appeal from the Umpire to the extent that it
reverses the decision of the Board of Referees is to
nullify the Commission's decision of August 17,
1981 and that, in my view, is the correct result for
the reasons expressed supra. In so far as the
so-called "decision" of August 28, 1981 is con
cerned, I agree with counsel for the applicant that
since that decision was not before the Board of
Referees nor dealt with by it, it was therefore not
before the Umpire. Accordingly, the Umpire was,
in my view, without jurisdiction to rescind the
so-called "decision" of August 28, 1981.
For these reasons, I would dismiss the appeal
from the Umpire's decision in so far as he reversed
the decision of the Board of Referees dealing with
the Commission's decision of August 17, 1981. I
would allow the appeal from that portion of the
Umpire's decision wherein he rescinded "The rul
ings of the Commission" and set aside that portion
of his decision.
I should add that while the relief proposed by
the Chief Justice in his reasons represents a practi
cal solution to the rather difficult problems raised
by this application, I am not prepared to concur in
the form of judgment which he proposes because I
have considerable doubt as to the power of the
Board of Referees to refer the matter back to the
Commission with instructions that it perform its
statutory function to consider the respondent's
application to backdate his claim under subsection
55(10). I think that the practical effect of dismiss
ing the appeal from the Umpire's decision in so far
as he reversed the decision of the Board of
Referees dealing with the Commission's decision
of August 17, 1981 would be to nullify that deci
sion by the Commission. In my view that is the
proper result and was the result which counsel for
the applicant sought to achieve, if I understood
him correctly. Once the Commission's decision of
August 17, 1981 is set aside, it seems to me that
the Commission is in the position of having before
it the applicant's application to antedate which it
is required by law to consider anew based on the
criteria set out in subsection 55(10) supra. Should
it fail to do so, I think a legal remedy would then
be open to the respondent to compel the Commis
sion to perform its statutory duty, likely by pro
ceedings in the Trial Division of this Court. For
these reasons, it is my opinion that an order for
referral back to the Commission is unnecessary in
these circumstances.
My concern about the power of the Board of
Referees to refer the matter back to the Commis
sion is based on my appreciation of the scheme of
the statute. The only section of the Act dealing
with appeals to the Board of Referees is section 94.
That section merely provides for appeals from
decisions of the Commission and stipulates that
the Board's decision shall be in writing which must
include a statement of the Board's findings on
questions of fact material to the decision. This lack
of detail concerning the powers of a board of
referees is in marked contrast to the powers of the
Umpire as set out in considerable detail in section
96 of the Act. Accordingly, I do not agree that it
can be inferred that the Board of Referees has the
inherent or incidental power to refer matters back
to the Commission with specific instructions as to
what the Commission must do in respect of a
particular matter. It is clear that Parliament has
given the Umpire such wide powers by section 96
of the Act. In my opinion, for the Board of
Referees to have similar powers, it would be neces
sary for Parliament to have spoken in a somewhat
similar and specific vein.
* * *
The following are the reasons for judgment
rendered in English by
VERCHERE D.J.: This is an application under
section 28 to review and set aside the decision of
the Umpire appointed here under the provisions of
the Unemployment Insurance Act, 1971. The cir
cumstances which led up to the appeal to him and
his disposition of it are set out in the judgments of
my learned colleagues which I have had the privi
lege of reading, and there is, therefore, no need for
me to review the facts or to comment on the
respondent's appeal to the Board of Referees
against the Commission's decision to disqualify
him for three weeks for alleged misconduct.
Further, like both my learned colleagues, I
would, with respect and for the reasons given by
them, sustain the Umpire's decision to allow the
respondent's appeal from the decision of the Board
made September 22, 1981, in so far as it supported
the Commission's refusal to antedate his claim to
May 25, 1981, from its filing date of June 25,
1981. The only question then is how to ensure that
the respondent can and will get the benefit of that
decision, that is to say, whether, on the one hand
the Umpire's decision should be set aside because
it failed to go far enough and the matter then
referred back to him with a direction that he in
turn refer it back to the Commission for its con
sideration of the claim in the light of the provisions
of subsection 55(10) of the Act, or, on the other, to
leave it to the respondent to take further proceed
ings to compel the Commission to reconsider the
antedating claim.
The former course commends itself to me as the
one to be followed here. I respectfully agree with
the reasons given for his conclusions by the learned
Chief Justice, and I accordingly concur in the form
of the order outlined by him.
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